Archive for December, 2016

Comparative health and safety in a war context

Comparative health and safety in a war context

Reports of health and safety prosecutions cover, with depressing regularity, incidents involving deaths and injuries caused by crushing. For example, an eighteen-year old worker, crushed by an unguarded industrial machine, lies dying in an English hospital. In Iraq, an eighteen-year old worker, crushed by British and American military operations, also lies dying in hospital. Physically and medically, there is no difference between the two. Both are innocent young human beings whose lives have been cut short by others.

Those responsible for the death of the first young man will almost certainly be prosecuted for health and safety offences and perhaps for manslaughter. His dependants are likely to receive financial compensation for his death. Those responsible for the second will not be held accountable in civil or criminal courts.

What is the difference? Physically, mentally and morally, none. In terms of law, it would probably be argued that the second is an unfortunate victim of an act of war. But we were under the general impression that war is illegal under international law. Not this War, those responsible would respond. But the great majority of international lawyers take the view that the Iraq War was illegal. The legal justification argument carries no weight.

Further arguments, involving political and military expediency, are also invalid. There is no justification for the second death. No justification, whether moral, ethical, legal, political or military. The fact that there is no justification debases legality and warps justice so that it becomes unrecognisable. English law has severed any connection with morality until it condemns the Iraq War and brings the war criminals to trial.

Welfare rights workers: help people to organise to fight back for themselves


Positive proposals for welfare rights workers

Such workers should devote much more of their time and energy to organising self-help, community-based groups in the following areas:

  • Tenants’ associations, with the aim of developing tenants’ ability to enforce their own rights and to improve their housing conditions through aggressive collective action.
  • Claimants’ unions, so that claimants themselves may fight to improve their position by informing themselves as to social security regulations and the development of tribunal expertise.
  • Squatters’ associations, formed to take over empty houses where the state and its agencies are unable or unwilling to provide decent accommodation. An important function of the trained welfare rights worker in this area should be to advise squatters of the risks of criminal prosecution.
  • In relation to the huge problem of illiteracy, which is becoming ever more serious in a high-technology society, instead of advice workers reading out letters to their clients, or explaining over and over again the meaning of gas bills and incomprehensible application forms, moves should be made towards developing community-based programmes of adult education and English teaching. The state has patently failed to teach large numbers of people how to read and write. New community schemes should aim to help people to educate themselves and to resist the oppression of an obscurantist bureaucracy.
  • A national boycott of all tribunals for a specified period with the express, publicised aim of exposing the inadequacies of the tribunal system.

Forty years ago, the discussion of such proposals was commonplace. Claimants’ unions, tenants’ associations and squatting groups were widespread and influential. Welfare rights work, then in its infancy, seemed to be moving in the direction of organising the poor to fight back for themselves, with the help of literate professionals. The Up Against the Law collective could state in Issue 2 of its magazine:

The law holds us in chains – if we can’t begin to see the chains, how can we begin to free ourselves? But the struggle isn’t limited to the courts. Up Against the Law is about more than defence – it is a part of people’s “crime” – tenants’ groups, strikes, squats, occupations –  a class offensive against the people in power.

Tolstoy on law

Tolstoy, Count Leo Nikolayevich (1828-1910)

Tolstoy has been described as a writer, aesthetic philosopher, moralist and mystic, the greatest European novelist. War and Peace and Anna Karenina are generally acknowledged to be the two greatest novels ever written. Tolstoy read law at Kazan University.

During the last twenty years of his life he wrote a number of essays expounding an innovative brand of non-violent anarchism, including the following commentary on law:

  • Laws are framed, and repealed, by human beings. It is not some sociological “iron” law, but ordinary man-made law, that produces slavery. The slavery of our times is very clearly and definitely produced by human enactments: about land, about taxes and about property.
  • There is one set of laws by which any quantity of land may belong to private people, and may pass from one to another by inheritance, or by will, or may be sold; there is another set of laws by which everyone must pay the taxes demanded of him unquestioningly; and there is a third set of laws to the effect that any quantity of articles, by whatever means acquired, may become the absolute property of the people who hold them. And in consequence of these laws, slavery exists.
  • We are so accustomed to all these laws that they seem to us just as necessary to human life, as the laws maintaining serfdom and slavery seemed in former times. No doubts about their necessity and justice seem possible, and we notice nothing wrong in them. But just as a time came when people, having seen the ruinous consequences of serfdom, questioned the justice and necessity of the laws which maintained it, so now, when the pernicious consequences of the present economic order have become evident, one involuntarily questions the justice and inevitability of the legislation about land, taxes and property which produces those results.
  • Land ownership: history shows that property in land resulted from the seizure of the common land by conquerors and its distribution to those who served the conquerors.
  • Taxes are taken by those who have the power to take them.
  • People formerly established laws enabling some people to buy and sell other people, and to own them, and to make them work, and slavery existed. Now people have established laws that men may not use land that is considered to belong to someone else, must pay the taxes demanded of them, and must not use articles considered to be the property of others – and we have the slavery of our times.
  • The essence of legislation is organised violence. According to science, legislation is the expression of the will of the whole people: but as those who break the laws, or who wish to break them and only refrain from doing so through fear of being punished, are always more numerous than those who wish to carry out the code, it is evident that legislation can certainly not be considered as the expression of the will of the whole people.
  • There is one characteristic common to all laws, namely, that if any one man does not fulfil them, those who have made those laws will send armed men, and the armed men will beat, deprive of freedom, or even kill, the man who does not obey the law.
  • For every non-fulfilment of the established laws there is punishment: the offender is subjected, by those who make the laws, to blows, imprisonment or even loss of life.
  • Everywhere and always the laws are enforced by the only means that has compelled, and still compels, some people to obey the will of others, by blows, by deprivation of liberty and by murder. There can be no other way. It cannot be otherwise. For laws are demands to obey certain rules and to compel some people to obey certain rules can only be done by blows, by deprivation of liberty and by murder. If there are laws, there must be the force that can compel people to obey them. There is only one force that can compel people to obey rules (to conform to the will of others) and that is violence; not the simple violence which people use on one another in moments of passion, but the organized violence used by people who have power in order to compel others to obey the laws that they, the powerful, have made, in other words, to do their will.
  • The essence of legislation lies in the fact that people who wield organized violence have power to compel others to obey them and do as they like.
  • Laws are rules, made by people who govern by means of organized violence, for non-compliance with which the non-complier is subjected to blows, to loss of liberty, or even to being murdered.

Litigants in person: specimen opening statement for unrepresented client

Specimen opening statement for an unrepresented client

  • Ask the court or tribunal for permission to make a brief opening statement.
  • Explain one’s own position so far as any or all of the following apply: limited financial means, no legal training or background, inability to obtain representation because of lack of money. Employment, medical and family status. Legal aid not available. No legal expenses insurance. Not a member of a trade union. Unable to obtain conditional fee. Have approached local Law Centre and charitable bodies for example the Bar Pro Bono Unit, without success.
  • Draw the attention of the court or tribunal to the overriding objective of the Civil Procedure Rules. The overriding objective of the Rules is to enable the court to deal with cases justly. This includes ensuring that the parties are on an equal footing.
  • Submit that the parties are not on an equal footing because the defendant has legal representation which he can afford, whereas the claimant does not.
  • Draw the attention of the court or tribunal to Article 6 of the European Convention on Human Rights: in summary, everyone is entitled to a fair trial. Submit that there is a danger of this principle being breached where one party can afford representation and the other side cannot.
  • Draw the attention of the court or tribunal to the decision of the European Court of Human Rights in the case of Airey v Ireland (1979) 2 E.H.R.R. 305, where that court ruled that there had been violations of Article 6 because Mrs Airey did not enjoy an effective right of access to the Ireland High Court to seek a decree of judicial separation. Legal aid was not available for the purpose of seeking judicial separation and Mrs Airey had insufficient means to pay the cost of proceedings herself. The court made the following points:
  • The European Convention on Human Rights was intended to guarantee not theoretical or illusory but practical and effective rights. Having regard to the complexity of the procedure and points of law involved, to the evidential questions arising and to the emotional involvement entailed by marital disputes, the possibility open to Mrs Airey of conducting her case herself did not provide her with an effective right of access.
  • The fact that the alleged right of access stemmed solely from Mrs Airey’s personal circumstances was not decisive. Hindrance in fact could constitute a violation of the Convention just like a legal impediment and certain Convention obligations, such as that to secure an effective right of access to the courts, could on occasion necessitate positive State action.
  • It was most improbable that a person in Mrs Airey’s position could effectively present his or her own case.
  • Draw the attention of court or tribunal to the decision of the European Court of Human Rights in the case of Steel and Morris v United Kingdom (2005) The Times, February 16, where that court ruled that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms.
  • Point out to the court or tribunal the decision in Bertuzzi v France (2003). In June 1995 B obtained full legal aid to start proceedings against a lawyer. The lawyers assigned to the case applied to withdraw because they had personal links with the defendant. Later in 1995 B asked the president of the legal aid office and the president of the bar council to assign another lawyer. B received no reply until March 1997 when he was told that the grant of legal aid had lapsed.

The European Court of Human Rights ruled that there had been a breach of Article 6 of the European Convention on Human Rights – B had not had effective access to a court. The court made the following points:

  • The relevant authorities should have arranged for a replacement who would provide B with proper assistance.
  • Permitting B to represent himself in proceedings against a legal practitioner did not afford him access to a court under conditions which would secure him the effective enjoyment of equality of arms which was inherent in the concept of a fair trial.
  • The Convention is intended to guarantee not rights which are theoretical or illusory but which are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial.
  • State that one appreciates that the court or tribunal may regard this submission as not relevant to current proceedings: advise the court or tribunal that the issues raised in the submission may also be raised in future appeal proceedings and/or in an application to the European Court of Human Rights.

Work experience teenager seriously injured: Radwell International Ltd fined £86,000

Work experience injury: £86,000 fine

Health and Safety Executive v Radwell International Ltd (2016) Stafford Crown Court, December 2

Statutory reference: ss 2 and 3, Health and Safety at Work, etc, 1974 (HSWA).

Radwell International Ltd, a supplier of industrial equipment, has been fined after a work experience person suffered serious injuries.

The facts

  • A work experience teenager was working at the company’s site in Newcastle.
  • During the unloading of a heavy electrical panel form the back of a lorry, the teenager was asked to steady the panel which had been placed on a wooden pallet on the ground.
  • The panel fell and trapped him on the ground across the forks of a forklift truck. He suffered five fractures of his pelvis and a head injury.
  • The company had failed to carry out a suitable and sufficient risk assessment, training, supervision and communication.

The decision

The company was fined £86,000 plus £12,000 costs for breaches of ss 2 and 3, HSWA, for failing to ensure the health and safety of employees and non-employees.

Bathurst Mews basement excavation: serious safety breaches: two companies fined

Basement excavation: serious safety breaches: companies fined

Health and Safety Executive v Lifehouse (London) Ltd and Nu Space (Design) Ltd (2016) Westminster magistrates’ court, December 9

Statutory reference: Construction (Design and Management) Regulations 2015 (CDM).

Two London based construction companies have been fined following an HSE inspection which identified serious safety breaches on a double basement construction project.

The facts

  • Emergency services were called to a property at Bathurst Mews, London, where Lifehouse (London) Ltd was the principal contractor for excavation work to form a double basement was being carried out.
  • A labourer with a broken arm was rescued and concerns were reported to the HSE.
  • The HSE inspection found that workers were at risk from falling into deep excavations and there were no propping arrangements to ensure the stability of excavations or of the existing building.
  • The inspector immediately closed down the site. An independent consultant had raised the same concerns a few days earlier but the recommendations had not been put into effect.
  • Lifehouse had appointed Nu Space as the contractor for the work and one of its directors as site manager. Neither company appointed a competent person to inspect the excavations to ensure that they were safe.

The decision

Lifehouse (London) Ltd was fined £24,000 plus £1400 costs for a breach of regulation 13, CDM.

Nu Space (Design ) Ltd was fined £20,000 plus £1000 costs under regulation 15, CDM.

Death of worker on Putney construction site: three companies prosecuted

Construction companies fined after death of worker

Health and Safety Executive v St James Group Ltd, Mitchellson Formwork and Civil Engineering Ltd and RGF Construction Ltd (2016) Southwark Crown Court, November 2.

Statutory reference: Construction (Design and Management) Regulations 2007 (CDM).

Three construction companies have been fined following the death of a worker when a temporary platform collapsed.

The facts

  • In October 2012 a carpenter and a steel fixer were working at a construction site in Putney. They were standing on a temporary wooden platform on the 9th floor of the site.
  • The platform collapsed and both men fell 16 metres to a concrete staircase below. The carpenter suffered fatal injuries and the steel fixer suffered serious injuries.
  • Similar platforms had been constructed on other floors throughout the site by using timber joists supported by unsuitable joist hangers with plywood fixed on top. These were not built to an agreed safe design. The quality of the build was not checked by those in control of the site.

The decision

  • St James Group Ltd, the principal contractor, was fined £600,000 plus £15,000 costs under regulation 22 of CDM.
  • Mitchellson, the contractor responsible for constructing the platforms, was fined £400,000 plus £15,000 costs under regulation 13, CDM.
  • RGF Construction, a site agent which assisted with managing the work, was fined £20,000 for breaches of regulations 13 and 28, CDM.

Farm death of 11 year old: drunk tractor driver: prison sentence

Farm death: drunk tractor driver: prison sentence

Health and Safety Executive v Gary Green (2016) Leeds Crown Court, December 13

Statutory reference: s.2 of the Health and Safety at Work, etc Act 1974 (HSWA)

Gary Green, a farm worker, has been sentenced to imprisonment following the death of an 11-year old boy.

The facts

  • Harry Whitlam, aged 11, regularly visited Swithens Farm where his mother worked. Parts of the farm were open to the public and working areas were closed off. The boy was allowed into the working section but he was accompanied.
  • Gary Green, a self-employed worker at the farm, was reversing a tractor in the working area. The tractor struck the boy, causing fatal injuries.
  • Green was breathalysed and found to be 2.5 time over the lega alcohol limit.

The decision

Green was sentenced to 16 months and 2 weeks in prison for a breach of s.2, HSWA.

Fairground death of worker on Twister ride: £47,000 fine

Fairground death: £47,000 fine

Health and Safety Executive v Stevens Amusements Ltd (2016) Northampton Crown Court, December 5

Statutory reference: s 3 of the Health and Safety at Work, etc Act 1974 (HSWA).

Stevens Amusements Ltd, a fairground company, has been fined following the death of a worker.

The facts

  • In April 2011 Michael O’Brian was working on the setting up of a fun fair at Wellingborough. A Twister ride was being manoeuvred into position from an HGV vehicle. O’Brian was run over and suffered fatal crush injuries.
  • A banksman was guiding the vehicle but he was on is passenger side. The deceased was found on the driver’s side.
  • Inadequate arrangements were in place to segregate people from moving vehicles.

The decision

Stevens Amusements Ltd was fined £47,000 plus £82,000 costs for a breach of s.3, HSWA.

An HSE inspector commented after the case that travelling fairs visit a large number of sites. A specific assessment of the risks must be made at each site before beginning hazardous activities.

Death on public footpath by trampling from cows:farmer given suspended sentence

Death and injury from cows: suspended sentence for farmer

Health and Safety Executive v Brian Godwin (2016) Swindon Crown Court, December 5

Statutory reference: s. 3 of the Health and Safety at Work, etc Act 1974 (HSWA).

Brian Godwin, a farmer, has been given a suspended prison sentence after a member of the public was killed, and another injured, by cows in a field.

The facts

  • In May 2013 Mike Porter and his brother John were walking with dogs on a pubic footpath through a field near Bradford on Avon. Cows with calves were grazing in the field. The animals belonged to Brian Godwin.
  • Mike Porter died from crush injuries caused by cattle trampling him. His brother suffered multiple rib fractures, a punctured lung and general contusions.
  • Godwin had not taken reasonable precautions to protect members of the public walking on footpaths through his fields, from his cattle.
  • The incident was the fourth in five years involving injuries to members of the public caused by Godwin’s cattle.
  • Where livestock are judged to present a risk to walkers, they should be segregated by fencing or kept in fields without footpaths. The cattle may have attacked the walkers because they perceived a risk to their calves from the men and their dogs.

The decision

Bran Godwin pleaded guilty to a breach of s.3, HSWA, for failing to ensure the health and safety of non-employees. He was given a prison sentence of 12 months suspended for two years and ordered to pay £30,000 costs.